Clients sometimes tell me that they and their husband/wife have decided to separate, that they don’t have grounds for divorce and want to know what they should do next.

Clients sometimes want to know if they can have a “legal separation” and do they need to “tell anyone” that they are separating.

There is no such thing as an illegal separation if you and your partner agree that your marriage has come to an end and that you want to separate; there is absolutely no reason why you should not do so. The decision to live separately may have come quite easily however decisions about arrangements for any children and finances may not come so easily.

If you decide to separate and neither of you have grounds for divorce then you are both relying on each other, with or without the help of family lawyers, to be able to communicate with each other to reach agreement about the terms of your separation.

I have certainly had experience during the 32 years that I have been practising as a family lawyer, for a client to come to see me after being separated for 2 years to get divorced. They have not needed to come to see me before because the arrangements for children and finances were all agreed at the time they separated, so clearly it can be done.

If you don’t have grounds for divorce or simply do not want to start divorce proceedings AND can agree the financial and children arrangements, you might want to consider entering into a Separation Agreement. This is a document, prepared by a family lawyer, that both of you sign which confirms that you want to separate with a view to being divorced and have reached agreement about financial matters and the arrangements for any children.

A Separation Agreement usually provides for one of you to start divorce proceedings when you have been separated for 2 years on the basis that you both consent. It also details the financial arrangements that you have agreed and provides for them to be confirmed in a consent order which is approved by the court as part of your divorce. It should be noted that if you have agreed that any pensions will be shared, the actual pension sharing cannot take place without a decree absolute of divorce and a pension sharing order.

A Separation Agreement is not the same as a court order and therefore it cannot be 100% watertight. If however, you have both received legal advice on the contents of the agreement, it is extremely unlikely that a court will “go behind” the terms of the agreement reached in any subsequent divorce proceedings. If one of you does not obtain legal advice it can leave open the possibility that the terms of the financial agreement might be challenged as part of the subsequent divorce proceedings.

If you are still on good terms you may feel able to sit down together to discuss matters in an honest, open and constructive way and reach agreement. If communication is difficult or you are not comfortable doing that you and your partner may decide to work with a mediator and then instruct a solicitor to draft the Separation Agreement.

The advantage of signing a Separation Agreement is that you and your partner will both be clear about your finances and be able to move forward, notwithstanding that you are not divorced. You can come to terms with the end of your marriage and cope with the emotional rollercoaster that it often involves without worrying about financial arrangements.

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